Comelec

G.R. No. 191890. December 4, 2012.
EVALYN I. FETALINO and AMADO M. CALDERON, petitioners,
MANUEL A. BARCELONA, JR., petitioner-intervenor, vs. COMMISSION ON ELECTIONS, respondent.
Administrative Law; Retirement; Public Officers; Republic Act No. 1568; R.A. No. 1568 provides two
types of retirement benefits for a Comelec Chairperson or Member: a gratuity or five-year lump sum,
and an annuity or a lifetime monthly pension.―R.A. No. 1568 provides two types of retirement benefits
for a Comelec Chairperson or Member: a gratuity or five-year lump sum, and an annuity or a lifetime
monthly pension. Our review of the petitions, in particular, Barcelona’s petition for intervention,
indicates that he merely questions the discontinuance of his monthly pension on the basis of Comelec
Resolution No. 8808. As the assailed resolution, by its plain terms (cited above), only pertains to the
lump sum benefit afforded by R.A. No. 1568, it appears that Barcelona’s petition for intervention is
misdirected. We note, too, that Barcelona has not substantiated his bare claim that the Comelec
discontinued the payment of his monthly pension on the basis of the assailed Resolution.
Same; Same; Same; Events that Must Transpire for One to be Entitled to the Five-Year Lump Sum
Gratuity Under Section 1 of R.A. No. 1568.―To be entitled to the five-year lump sum gratuity under
Section 1 of R.A. No. 1568, any of the following events must transpire: (1) Retirement from the service
for having completed the term of office; (2) Incapacity to discharge the duties of their office; (3) Death
while in the service; and (4) Resignation after reaching the age of sixty (60) years but before the
expiration of the term of office. In addition, the officer should have rendered not less than twenty years
of service in the government at the time of retirement.
Same; Same; Same; Words and Phrases; Resignation is defined as the act of giving up or the act of an
officer by which he declines his
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* EN BANC.
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SUPREME COURT REPORTS ANNOTATED
Fetalino vs. Commission on Elections
office and renounces the further right to it.―“Resignation is defined as the act of giving up or the act of
an officer by which he declines his office and renounces the further right to it. To constitute a complete
and operative act of resignation, the officer or employee must show a clear intention to relinquish or
surrender his position accompanied by the act of relinquishment.” In this sense, resignation likewise
does not appear applicable as a ground because the petitioners did not voluntarily relinquish their
position as Commissioners; their termination was merely a consequence of the adjournment of
Congress without action by the CA on their ad interim appointments.
Same; Same; Same; Section 1 of R.A. No. 1568 allows the grant of retirement benefits to the Chairman
or any Member of the Comelec who has retired from the service after having completed his term of
office.―Section 1 of R.A. No. 1568 allows the grant of retirement benefits to the Chairman or any
Member of the Comelec who has retired from the service after having completed his term of office. The
petitioners obviously did not retire under R.A. No. 1568, as amended, since they never completed the
full seven-year term of office prescribed by Section 2, Article IX-D of the 1987 Constitution; they served
as Comelec Commissioners for barely four months, i.e., from February 16, 1998 to June 30, 1998. In the
recent case of Re: Application for Retirement of Judge Moslemen T. Macarambon under Republic Act
No. 910, as amended by Republic Act No. 9946, 673 SCRA 602 (2012), where the Court did not allow
Judge Macarambon to retire under R.A. No. 910 because he did not comply with the age and service
requirements of the law, the Court emphasized: Strict compliance with the age and service
requirements under the law is the rule and the grant of exception remains to be on a case to case basis.
We have ruled that the Court allows seeming exceptions to these fixed rules for certain judges and
justices only and whenever there are ample reasons to grant such exception. (emphasis ours; citations
omitted) More importantly, we agree with the Solicitor General that the petitioners’ service, if any,
could only amount to tenure in office and not to the term of office contemplated by Section 1 of R.A.
No. 1568. Tenure and term of office have well-defined meanings in law and jurisprudence.
Same; Same; Same; The petitioners can never be considered to have retired from the service not only
because they did not complete
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the full term, but, more importantly, because they did not serve a “term of office” as required by
Section 1 of R.A. No. 1568, as amended.―While we characterized an ad interim appointment in Matibag
v. Benipayo, 380 SCRA 49 (2002) “as a permanent appointment that takes effect immediately and can no
longer be withdrawn by the President once the appointee has qualified into office,” we have also
positively ruled in that case that “an ad interim appointment that has lapsed by inaction of the
Commission on Appointments does not constitute a term of office.” We consequently ruled: However,
an ad interim appointment that has lapsed by inaction of the Commission on Appointments does not
constitute a term of office. The period from the time the ad interim appointment is made to the time it
lapses is neither a fixed term nor an unexpired term. To hold otherwise would mean that the President
by his unilateral action could start and complete the running of a term of office in the COMELEC without
the consent of the Commission on Appointments. This interpretation renders inutile the confirming
power of the Commission on Appointments. (emphasis ours; italics supplied) Based on these
considerations, we conclude that the petitioners can never be considered to have retired from the
service not only because they did not complete the full term, but, more importantly, because they did
not serve a “term of office” as required by Section 1 of R.A. No. 1568, as amended.
Same; Same; Same; Statutory Construction; The language of the retirement law is clear and unequivocal;
no room for construction or interpretation exists, only the application of the letter of the law.―The
petitioners’ appeal to liberal construction of Section 1 of R.A. No. 1568 is misplaced since the law is clear
and unambiguous. We emphasize that the primary modality of addressing the present case is to look
into the provisions of the retirement law itself. Guided by the rules of statutory construction in this
consideration, we find that the language of the retirement law is clear and unequivocal; no room for
construction or interpretation exists, only the application of the letter of the law.
Same; Same; Same; Same; The discretionary power of the Court to exercise the liberal application of
retirement laws is not limitless; its exercise of liberality is on a case-to-case basis and only after a
consideration of the factual circumstances that justify the grant of an exception.―We find no
compelling legal or factual reasons for the
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application of the Court’s liberality in the interpretation of retirement laws to the present case. The
discretionary power of the Court to exercise the liberal application of retirement laws is not limitless; its
exercise of liberality is on a case-to-case basis and only after a consideration of the factual
circumstances that justify the grant of an exception. The recent case of Re: Application for Retirement of
Judge Moslemen T. Macarambon under Republic Act No. 910, as amended by Republic Act No. 9946,
673 SCRA 602 (2012), fully explained how a liberal approach in the application of retirement laws should
be construed, viz.: The rule is that retirement laws are construed liberally in favor of the retiring
employee. However, when in the interest of liberal construction the Court allows seeming exceptions to
fixed rules for certain retired Judges or Justices, there are ample reasons behind each grant of an
exception. The crediting of accumulated leaves to make up for lack of required age or length of service is
not done indiscriminately. It is always on a case to case basis. In some instances, the lacking
element―such as the time to reach an age limit or comply with length of service is de minimis. It could
be that the amount of accumulated leave credits is tremendous in comparison to the lacking period of
time. More important, there must be present an essential factor before an application under the Plana
or Britanico rulings may be granted. The Court allows a making up or compensating for lack of required
age or service only if satisfied that the career of the retiree was marked by competence, integrity, and
dedication to the public service; it was only a bowing to policy considerations and an acceptance of the
realities of political will which brought him or her to premature retirement.
Same; Same; Same; Same; In the oft-cited case of Tañada v. Yulo, 61 Phil. 515 (1935), Justice George A.
Malcolm cautioned against judicial legislation and warned against liberal construction being used as a
license to legislate and not to simply interpret.―In the absence of any basis for liberal interpretation,
the Court would be engaged in judicial legislation if we grant the petitioners’ plea. We cannot
overemphasize that the policy of liberal construction cannot and should not be to the point of engaging
in judicial legislation―an act that the Constitution absolutely forbids this Court to do. In the oft-cited
case of Tañada v. Yulo, 61 Phil. 515 (1935), Justice George A. Malcolm cautioned against judicial
legislation and warned against liberal construction being used as a license to legis-
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late and not to simply interpret, thus: Counsel in effect urges us to adopt a liberal construction of the
statute. That in this instance, as in the past, we aim to do. But counsel in his memorandum concedes
“that the language of the proviso in question is somewhat defective and does not clearly convey the
legislative intent”, and at the hearing in response to questions was finally forced to admit that what the
Government desired was for the court to insert words and phrases in the law in order to supply an
intention for the legislature. That we cannot do. By liberal construction of statutes, courts from the
language used, the subject matter, and the purposes of those framing them are able to find out their
true meaning. There is a sharp distinction, however, between construction of this nature and the act of
a court in engrafting upon a law something that has been omitted which someone believes ought to
have been embraced. The former is liberal construction and is a legitimate exercise of judicial power.
The latter is judicial legislation forbidden by the tripartite division of powers among the three
departments of government, the executive, the legislative, and the judicial.
Same; Due Process; A party cannot successfully invoke deprivation of due process if he was accorded the
opportunity of a hearing, through either oral arguments or pleadings.―“[A] party cannot successfully
invoke deprivation of due process if he was accorded the opportunity of a hearing, through either oral
arguments or pleadings. There is no denial of due process when a party is given an opportunity through
his pleadings.” In the present case, the petitioners cannot claim deprivation of due process because they
actively participated in the Comelec proceedings that sought for payment of their retirement benefits
under R.A. No. 1568. The records clearly show that the issuance of the assailed Comelec resolution was
precipitated by the petitioners’ application for retirement benefits with the Comelec. Significantly, the
petitioners were given ample opportunity to present and explain their respective positions when they
sought a re-computation of the initial pro-rated retirement benefits that were granted to them by the
Comelec. Under these facts, no violation of the right to due process of law took place.
Same; Retirement; Public Officers; Retirement benefits as provided under R.A. No. 1568 must be
distinguished from a pension which is a form of deferred compensation for services performed; in a
pension, employee participation is mandatory, thus, employees ac-
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quire contractual or vested rights over the pension as part of their compensation. In the absence of any
vested right to the R.A. No. 1568 retirement benefits, the petitioners’ due process argument must
perforce fail.―We agree with the Solicitor General that the retirement benefits granted to the
petitioners under Section 1 of R.A. No. 1568 are purely gratuitous in nature; thus, they have no vested
right over these benefits. Retirement benefits as provided under R.A. No. 1568 must be distinguished
from a pension which is a form of deferred compensation for services performed; in a pension,
employee participation is mandatory, thus, employees acquire contractual or vested rights over the
pension as part of their compensation. In the absence of any vested right to the R.A. No. 1568
retirement benefits, the petitioners’ due process argument must perforce fail.
Reyes, J., Dissenting Opinion:

Administrative Law; Ad Interim Appointments; View that the termination of the petitioners’ ad interim
appointments cannot qualify as either incapacity or resignation.―The termination of the petitioners’ ad
interim appointments cannot qualify as either incapacity or resignation. Incapacity in this case means
the inability of a public officer to perform the functions and duties concomitant to the office due to
impairment. The termination of the petitioners’ ad interim appointment was obviously not a result of
any disability such that the petitioners cannot perform the duties of a Commissioner. The limitation on
their capacity to perform the duties of their office was due to the simple reason that they have no office
or responsibility to speak of since their ad interim appointments were not acted upon by the CA and
were bypassed with the adjournment of Congress.
Same; Resignation; Public Officers; View that to constitute a complete and operative act of resignation,
the officer or employee must show a clear intention to relinquish or surrender his position accompanied
by the act of relinquishment.―Neither can the termination of their ad interim appointments be deemed
as resignation. Resignation is defined as the act of giving up or the act of an officer by which he declines
his office and renounces the further right to use it. To constitute a complete and operative act of
resignation, the officer or employee must show a clear intention to relinquish or surrender his position
accompanied by the act of relinquishment. In this case, there was no intentional relinquishment by the
petitioners’
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of their posts as the termination was a result of the adjournment of Congress without the CA acting on
their appointments.
Same; Retirement; Public Officers; View that retirement laws are designed to provide for the retiree’s
sustenance and, hopefully, even comfort, when he no longer has the capability to earn a livelihood.
Thus, the non-renewal of the petitioners’ ad interim appointments should be tantamount to expiration
of their respective terms and in line with the same dictates of justice and equity espoused in Ortiz, the
petitioners, therefore, are deemed to have completed their terms of office and considered as retired
from the service.―A liberal construction of R.A. No. 1568, as amended, would achieve the humanitarian
purposes of the law so that efficiency, security and well-being of government employees may be
enhanced. After all, retirement laws are designed to provide for the retiree’s sustenance and, hopefully,
even comfort, when he no longer has the capability to earn a livelihood. Thus, the non-renewal of the
petitioners’ ad interim appointments should be tantamount to expiration of their respective terms and
in line with the same dictates of justice and equity espoused in Ortiz, the petitioners, therefore, are
deemed to have completed their terms of office and considered as retired from the service.
Same; Same; View that a maximum of five-year lump gratuity is given to a Chairperson or Commissioner
who retired and has served for at least five (5) years. If the years of service are less than five (5), then a
retiree is entitled to a gratuity for every year of service.―The petitioners, however, are not entitled to
the full five-year lump sum gratuity provided by R.A. No. 1568, as amended. Section 1 contains the
proviso: “he or his heirs shall be paid in lump sum his salary for one year, not exceeding five years, for
every year of service based upon the last annual salary that he was receiving at the time of retirement.”
Said condition provides for the manner of computing the retirement benefits due to a COMELEC
Chairperson or Commissioner. Consequently, a maximum of five-year lump gratuity is given to a
Chairperson or Commissioner who retired and has served for at least five (5) years. If the years of
service are less than five (5), then a retiree is entitled to a gratuity for every year of service. The same
proviso also contemplates the situation when a Chairperson or Commissioner does not complete the full
term of the office. This will occur, for example, when a Chairperson or Commissioner takes over
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in a case of vacancy resulting from certain causes―death, resignation, disability or impeachment―such

that the appointee will serve only for the unexpired portion of the term of the predecessor. In such case,
the retiree is entitled to gratuity depending on the years of service but not to exceed five (5) years.
Given that the petitioners did not serve the full length of their term of office, the computation of their
lump sum gratuity should be based on the foregoing proviso.
Same; Administrative; Words and Phrases; Right to be Heard; View that in Bautista v. COMELEC, 414
SCRA 299 (2003), the Court stated that the term administrative connotes, or pertains, to administration,
especially management, as by managing or conducting, directing or superintending, the execution,
application, or conduct of persons or things. It does not entail an opportunity to be heard, the
production and weighing of evidence, and a decision or resolution thereon.―Administrative power is
concerned with the work of applying policies and enforcing orders as determined by proper
governmental organs. In Bautista v. COMELEC, 414 SCRA 299 (2003), the Court stated that the term
administrative connotes, or pertains, to administration, especially management, as by managing or
conducting, directing or superintending, the execution, application, or conduct of persons or things. It
does not entail an opportunity to be heard, the production and weighing of evidence, and a decision or
resolution thereon. In denying the petitioners’ application for retirement benefits, the COMELEC was
merely applying and implementing the provisions of R.A. No. 1568, as amended, vis-à-vis the petitioners’
prevailing circumstances. It was not exercising any quasi-judicial or administrative adjudicatory power
such that the due process requirements of notice and hearing must be observed.
Same; Retirement; View that the retirement benefits granted to COMELEC Chairpersons and
Commissioners under R.A. No. 1568, as amended, are purely gratuitous in nature.―It should be stressed
that the retirement benefits granted to COMELEC Chairpersons and Commissioners under R.A. No. 1568,
as amended, are purely gratuitous in nature. The petitioners cannot claim any vested right over the
same as these are not similar to a pension plan where employee contribution or participation is
mandatory, thus vesting in the employee a right over said pension. The rule is that where the pension is
part of the terms of employment and employee participation is mandatory, employees have contractual
or vested rights in the pension.
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SPECIAL CIVIL ACTION in the Supreme Court. Certiorari, Prohibition and Mandamus.
The facts are stated in the opinion of the Court.
Froilan M. Bacungan & Associates for petitioners.
Quasha, Ancheta, Peña, Nolasco for petitioner-intervenor.
BRION, J.:
Before us is a Petition for Certiorari, Mandamus and Prohibition with Application for Writ of Preliminary
Injunction and/or Temporary Restraining Order,1 seeking to nullify and enjoin the implementation of
Commission on Elections (Comelec) Resolution No. 8808 issued on March 30, 2010.2 Republic Act (R.A.)
No. 1568, as amended,3 extends a five-year lump sum gratuity to the chairman or any member of the
Comelec upon retirement, after completion of the term of office; incapacity; death; and resignation
after reaching 60 years of age but before expiration of the term of office. The Comelec en banc
determined that former Comelec Commissioners Evalyn I. Fetalino4 and Amado M. Calderon5
(petitioners)—whose ad interim appointments were not acted upon by the Commission on
Appointments (CA) and, who were subsequently, not reappointed―are not entitled to the five-year
lump sum gratuity because they did not complete in full the seven-year term of office.
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1 Rollo, pp. 3-42.
2 Id., at pp. 46-51.

3 The term Republic Act No. 1568 without indicating its amended status refers to the Republic Act, as
amended, unless otherwise indicated.
4 Vice Remedios A. Salazar-Fernando, now a member of the Court of Appeals.
5 Vice Regalado E. Maambong (deceased), retired member of the Court of Appeals.
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The Antecedent Facts
On February 10, 1998, President Fidel V. Ramos extended an interim appointment to the petitioners as
Comelec Commissioners, each for a term of seven (7) years, pursuant to Section 2, Article IX-D of the
1987 Constitution.6 Eleven days later (or on February 21, 1998), Pres. Ramos renewed the petitioners’
ad interim appointments for the same position. Congress, however, adjourned in May 1998 before the
CA could act on their appointments. The constitutional ban on presidential appointments later took
effect and the petitioners were no longer re-appointed as Comelec Commissioners.7 Thus, the
petitioners merely served as Comelec Commissioners for more than four months, or from February 16,
1998 to June 30, 1998.8
Subsequently, on March 15, 2005, the petitioners applied for their retirement benefits and monthly
pension with the Comelec, pursuant to R.A. No. 1568.9 The Comelec initially approved the petitioners’
claims pursuant to its Resolution No. 06-136910 dated December 11, 2006 whose dispositive portion
reads:
[T]he Commission RESOLVED, as it hereby RESOLVES, to approve the recommendation of Director
Alioden D. Dalaig, Law Department,
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6 The provision states:
(2) The Chairman and the Commissioners shall be appointed by the President with the consent of the
Commission on Appointments for a term of seven years without reappointment. Of those first
appointed, three Members shall hold office for seven years, two Members for five years, and the last
Member for three years, without reappointment. Appointment to any vacancy shall be only for the
unexpired term of the predecessor. In no case shall any Member be appointed or designated in a
temporary or acting capacity.
7 Rollo, pp. 6-7.
8 Id., at p. 50.
9 Id., at pp. 52-67.
10 Id., at pp. 88-89.
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to grant the request of former Comelec Commissioners Evalyn Fetalino and Amado Calderon for the
payment of their retirement benefits, subject to release of funds for the purpose by the Department of
Budget and Management.11
On February 6, 2007, the Comelec issued Resolution No. 07-0202 granting the petitioners a pro-rated
gratuity and pension.12 Subsequently, on October 5, 2007, the petitioners asked for a re-computation of
their retirement pay on the principal ground that R.A. No. 1568,13 does not cover a pro-rated
computation of retirement pay. In response, the Comelec issued a resolution referring the matter to its
Finance Services Department for comment and recommendation.14 On July 14, 2009, the Comelec
issued another resolution referring the same matter to its Law Department for study and
recommendation.15
In the presently assailed Resolution No. 880816 dated March 30, 2010, the Comelec, on the basis of the
Law Department’s study, completely disapproved the petitioners’ claim for a lump sum benefit under
R.A. No. 1568. The Comelec reasoned out that:
Of these four (4) modes by which the Chairman or a Commissioner shall be entitled to lump sum benefit,
only the first instance (completion of term) is pertinent to the issue we have formulated above. It is
clear that the non-confirmation and non-renewal of appointment is not a case of resignation or
incapacity or death. The question rather is: Can it be considered as retirement from service for having
completed one’s term of office?
xxxx
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11 Id., at p. 89.
12 Id., at pp. 90-92.
13 Id., at p. 93.
14 Id., at pp. 94-97.
15 Id., at pp. 98-99.
16 Supra note 2.
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The full term of the Chairman and the Commissioners is seven (7) years. When there has been a partial
service, what remains is called the “unexpired term.” The partial service is usually called tenure. There is
no doubt in the distinction between a term and tenure. Tenure is necessarily variable while term is
always fixed. When the law, in this case, RA 1568 refers to completion of term of office, it can only mean
finishing up to the end of the seven year term. By completion of term, the law could not have meant
partial service or a variable tenure that does not reach the end. It could not have meant, the “expiration
of term” of the Commissioner whose appointment lapses by reason of non-confirmation of appointment
by the Commission on Appointments and non-renewal thereof by the President. It is rightly called
expiration of term but note: it is not completion of term. RA 1568 requires ‘having completed his term
of office’ for the Commissioner to be entitled to the benefits.
Therefore, one whose ad interim appointment expires cannot be said to have completed his term of
office so as to fall under the provisions of Section 1 of RA 1568 that would entitle him to a lump sum
benefit of five (5) years salary.17 (emphasis, italics and underscores ours)
On this basis, the Comelec ruled on the matter, as follows:
Considering the foregoing, the Commission RESOLVED, as it hereby RESOLVES, to APPROVE and ADOPT
the study of the Law Department on the payment of retirement benefits to members of the
Commission.
Consequently, the following former Chairman and Commissioners of this Commission whose
appointments expired by reason of non-approval by Commission on Appointments and non-renewal by
the President are not entitled to a lump sum benefit under Republic Act 1528 (sic):
Name Position Date of Service
1. Alfredo Benipayo, Jr. Chairman Feb. 16, 2001 to June 5, 2002
2. Evalyn Fetalino Commissioner Feb. 16, 1998 to June 30, 1998
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17 Id., at pp. 48-49.
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3. Amado Calderon Commissioner Feb. 16, 1998 to June 30, 1998
4. Virgilio Garciliano Commissioner Feb. 12, 2004 to June 10, 2005
5. Manuel Barcelona, Jr. Commissioner Feb. 12, 2004 to June 10, 2005
6. Moslemen Macarambon Commissioner Nov[.] 05, 2007 to Oct. 10, 2008
7. Leonardo Leonida Commissioner July 03, 2008 to June 26, 2009
This resolution shall also apply to all requests of former COMELEC Chairmen and Commissioners
similarly situated. All previous resolutions which are inconsistent herewith are hereby AMENDED or
REVOKED accordingly.
Let the Finance Services and Personnel Departments implement this resolution.18 (emphasis ours)
The Petitions
The petitioners sought the nullification of Comelec Resolution No. 8808 via a petition for certiorari
under Rule 65 of the Rules of Court. Petitioner-intervenor Manuel A. Barcelona, Jr. later joined the
petitioners in questioning the assailed resolution. Like the petitioners, Barcelona did not complete the
full seven-year term as Comelec Commissioner since he served only from February 12, 2004 to July 10,
2005. The petitioners and Barcelona commonly argue that:
(1) the non-renewal of their ad interim appointments by the CA until Congress already adjourned
qualifies as retirement under the law and entitles them to the full five-year lump sum gratuity;
(2) Resolution No. 06-1369 that initially granted the five-year lump sum gratuity is already final and
executory and cannot be modified by the Comelec; and
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18 Id., at pp. 50-51.

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(3) they now have a vested right over the full retirement benefits provided by RA No. 1568 in view of
the finality of Resolution No. 06-1369.19
In the main, both the petitioners and Barcelona pray for a liberal interpretation of Section 1 of R.A. No.
1568. They submit that the involuntary termination of their ad interim appointments as Comelec
Commissioners should be deemed by this Court as a retirement from the service. Barcelona, in support
of his plea for liberal construction, specifically cites the case of Ortiz v. COMELEC.20 The Court ruled in
this cited case that equity and justice demand that the involuntary curtailment of Mario D. Ortiz’s term
be deemed a completion of his term of office so that he should be considered retired from the service.
In addition, the petitioners also bewail the lack of notice and hearing in the issuance of Comelec
Resolution No. 8808. Barcelona also assails the discontinuance of his monthly pension on the basis of
the assailed Comelec issuance.21
The Case for the Respondents
On July 22, 2010, the Comelec filed its Comment22 through the Office of the Solicitor General. The
Comelec prays for the dismissal of the petition on the grounds outlined below:
First, it submits that the petitioners’ reliance on Section 13, Rule 18 of the Comelec Rules of Procedure
to show that Resolution No. 06-1369 has attained finality is misplaced as this resolution is not the final
decision contemplated by the Rules. It also argues that estoppel does not lie against the Comelec since
the erroneous application and enforcement of
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19 Id., at pp. 12-38.
20 245 Phil. 780, 788; 162 SCRA 812, 820 (1988).
21 Rollo, p. 237.
22 Id., at pp. 107-122.
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the law by public officers do not estop the Government from making a subsequent correction of its
errors.23
Second, the Comelec reiterates that the petitioners are not entitled to the lump sum gratuity,
considering that they cannot be considered as officials who retired after completing their term of office.
It emphasizes that R.A. No. 1568 refers to the completion of the term of office, not to partial service or
to a variable tenure that does not reach its end, as in the case of the petitioners. The Comelec also
draws the Court’s attention to the case of Matibag v. Benipayo24 where the Court categorically ruled
that an ad interim appointment that lapsed by inaction of the Commission on Appointments does not
constitute a term of office.25
Third, it argues that the petitioners do not have any vested right on their retirement benefits
considering that the retirements benefits afforded by R.A. No. 1568 are purely gratuitous in nature; they
are not similar to pension plans where employee participation is mandatory so that they acquire vested
rights in the pension as part of their compensation. Without such vested rights, the Comelec concludes
that the petitioners were not deprived of their property without due process of law.26
The Court’s Ruling
We DISMISS the petition and DENY Barcelona’s petition for intervention.
Preliminary Considerations
R.A. No. 1568 provides two types of retirement benefits for a Comelec Chairperson or Member: a
gratuity or five-year
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23 Id., at pp. 113-116.
24 429 Phil. 554; 380 SCRA 49 (2002).
25 Rollo, p. 119.
26 Id., at pp. 120-121.
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lump sum, and an annuity or a lifetime monthly pension.27 Our review of the petitions, in particular,
Barcelona’s petition for intervention, indicates that he merely questions the discontinuance of his
monthly pension on the basis of Comelec Resolution No. 8808.28 As the assailed resolution, by its plain
terms (cited above), only pertains to the lump sum benefit afforded by R.A. No. 1568, it appears that
Barcelona’s petition for intervention is misdirected. We note, too, that Barcelona has not substantiated
his bare claim that the Comelec discontinued the payment of his monthly pension on the basis of the
assailed Resolution.
To put the case in its proper perspective, the task now before us is to determine whether the petitioners
are entitled to the full five-year lump sum gratuity provided for by R.A. No. 1568. We conclude under
our discussion below that they are not so entitled as they did not comply with the conditions required
by law.
The petitioners are not entitled to the
lump sum gratuity under Section 1 of
R.A. No. 1568, as amended

That the petitioners failed to meet conditions of the applicable retirement law―Section 1 of R.A. No.
156829―is beyond dispute. The law provides:
_______________
27 Section 1 of R.A. No. 1568, as amended.
28 Supra note 20.
29 Originally, Section 1 of R.A. No. 1568 only provided for a five-year lump sum gratuity. It reads:
Section 1. When the Auditor General, or the Chairman or any Member of the Commission on
Elections retires from the service for having completed his term of office or by reason of his incapacity
to discharge the duties of his office, or dies while in the service, or resigns upon reaching the age of sixty
years, he or his heirs shall be paid in lump sum his salary for five years: Provided, That at the time of said
retirement, death or
829
829
Sec. 1. When the Auditor General or the Chairman or any Member of the Commission on Elections
retires from the service for having completed his term of office or by reason of his incapacity to
discharge the duties of his office, or dies while in the service, or resigns at any time after reaching the
age of sixty years but before the expiration of his term of office, he or his heirs shall be paid in lump sum
his salary for one year, not exceeding five years, for every year of service based upon the last annual
salary that he was receiving at the time of retirement, incapacity, death or resignation, as the case may
be: Provided, That in case of resignation, he has rendered not less than twenty years of service in the
government; And, provided, further, That he shall receive an annuity payable monthly during the
residue of his natural life equivalent to the amount of monthly salary he was receiving on the date of
retirement, incapacity or resignation. [italics supplied]
To be entitled to the five-year lump sum gratuity under Section 1 of R.A. No. 1568, any of the following
events must transpire:
_______________
resignation, he has rendered not less than twenty years of service in the government.
Subsequently, R.A. No. 1568 was amended by R.A. No. 3473 (entitled “An Act to provide under certain
conditions life pension to the Auditor General and the Chairman and members of the Commission on
Elections”) to include a life pension and R.A. No. 3595. These amendments added the following proviso
in Section 1 of R.A. No. 1568, as amended:
And, provided, further, That he shall receive an annuity payable monthly during the residue of his
natural life equivalent to the amount of the monthly salary he was receiving on the date of retirement,
incapacity or resignation.
On June 17, 1967, R.A. No. 4968 (entitled “An Act to Amend Republic Act Numbered Fifteen Hundred
Sixty-Eight”) abolished R.A. No. 1568, as amended. Finally, on August 4, 1969, R.A. No. 6118 (entitled
“An Act to Restore the Pension System for the Auditor General and the Chairman and Members of the
Commission on Elections as Provided in Republic Act Numbered One Thousand Five Hundred Sixty-Eight,
as amended”) re-enacted R.A. No. 1568, as amended, by R.A. No. 3473 and R.A. No. 3595.
830
830
(1) Retirement from the service for having completed the term of office;
(2) Incapacity to discharge the duties of their office;
(3) Death while in the service; and
(4) Resignation after reaching the age of sixty (60) years but before the expiration of the term of office.
In addition, the officer should have rendered not less than twenty years of service in the government at
the time of retirement.
Death during the service obviously does not need to be considered in the present case, thus leaving
retirement, incapacity and resignation as the event that must transpire in order to be entitled to the
lump sum gratuity.
We note that the termination of the petitioners’ ad interim appointments could hardly be considered as
incapacity since it was not the result of any disability that rendered them incapable of performing the
duties of a Commissioner. Thus, incapacity is likewise effectively removed from active consideration.
“Resignation is defined as the act of giving up or the act of an officer by which he declines his office and
renounces the further right to it. To constitute a complete and operative act of resignation, the officer
or employee must show a clear intention to relinquish or surrender his position accompanied by the act
of relinquishment.”30 In this sense, resignation likewise does not appear applicable as a ground because
the petitioners did not voluntarily relinquish their position as Commissioners; their termination was
merely a consequence of the adjournment of Congress without action by the CA on their ad interim
appointments.
This eliminative process only leaves the question of whether the termination of the petitioners’ ad
interim appointments amounted to retirement from the service after
_______________
30 Ortiz v. Comelec, supra note 19 at p. 787; p. 819; citations omitted.
831
831
completion of the term of office. We emphasize at this point that the right to retirement benefits
accrues only when two conditions are met: first, when the conditions imposed by the applicable law―in
this case, R.A. No. 1568―are fulfilled; and second, when an actual retirement takes place.31 This Court
has repeatedly emphasized that retirement entails compliance with certain age and service
requirements specified by law and jurisprudence, and takes effect by operation of law.32
Section 1 of R.A. No. 1568 allows the grant of retirement benefits to the Chairman or any Member of the
Comelec who has retired from the service after having completed his term of office. The petitioners
obviously did not retire under R.A. No. 1568, as amended, since they never completed the full seven-
year term of office prescribed by Section 2, Article IX-D of the 1987 Constitution; they served as Comelec
Commissioners for barely four months, i.e., from February 16, 1998 to June 30, 1998. In the recent case
of Re: Application for Retirement of Judge Moslemen T. Macarambon under Republic Act No. 910, as
amended by Republic Act No. 9946,33 where the Court did not allow Judge Macarambon to retire under
R.A. No. 910 because he did not comply with the age and service requirements of the law, the Court
emphasized:
Strict compliance with the age and service requirements under the law is the rule and the grant of
exception remains to be on a case to case basis. We have ruled that the Court allows seeming
exceptions to these fixed rules for certain judges and justices only and whenever there are ample
reasons to grant such exception. (emphasis ours; citations omitted)
_______________
31 See J. Brion’s Separate Concurring Opinion in Herrera v. National Power Corporation, G.R. No.
166570, December 18, 2009, 608 SCRA 475, 501, citing Development Bank of the Philippines v.
Commission on Audit, 467 Phil. 62; 422 SCRA 459 (2004).
32 Re: Application for Retirement of Judge Moslemen T. Macarambon under Republic Act No. 910, as
amended by Republic Act No. 9946, A.M. No. 14061- Ret, June 19, 2012, 673 SCRA 602.
33 Ibid.
832
832

More importantly, we agree with the Solicitor General that the petitioners’ service, if any, could only
amount to tenure in office and not to the term of office contemplated by Section 1 of R.A. No. 1568.
Tenure and term of office have well-defined meanings in law and jurisprudence. As early as 1946, the
Court, in Topacio Nueno v. Angeles,34 provided clear distinctions between these concepts in this wise:
The term means the time during which the officer may claim to hold the office as of right, and fixes the
interval after which the several incumbents shall succeed one another. The tenure represents the term
during which the incumbent actually holds the office. The term of office is not affected by the hold-over.
The tenure may be shorter than the term for reasons within or beyond the power of the incumbent.
There is no principle, law or doctrine by which the term of an office may be extended by reason of war.
[emphasis ours]
This is the ruling that has been followed since then and is the settled jurisprudence on these
concepts.35
_______________
34 76 Phil. 12, 21-22 (1946).
35 Aparri v. Court of Appeals, et al. (L-30057, January 31, 1984, 127 SCRA 231) similarly discusses what a
“term” connotes, as follows:
The word “term” in a legal sense means a fixed and definite period of time which the law describes that
an officer may hold an office. According to Mechem, the term of office is the period during which an
office may be held. Upon the expiration of the officer’s term, unless he is authorized by law to holdover,
his rights, duties and authority as a public officer must ipso facto cease. In the law of Public Officers, the
most natural and frequent method by which a public officer ceases to be such is by the expiration of the
term for which he was elected or appointed. [emphasis ours; italics supplied; citations omitted]
A later case, Gaminde v. Commission on Audit (G.R. No. 140335, December 13, 2000, 347 SCRA 655,
663) reiterated the well-settled distinction between term and tenure, viz.:
In the law of public officers, there is a settled distinction between “term” and “tenure.” “[T]he term of
an office must be
833
833
While we characterized an ad interim appointment in Matibag v. Benipayo36 “as a permanent

appointment that takes effect immediately and can no longer be withdrawn by the President once the
appointee has qualified into office,” we have also positively ruled in that case that “an ad interim
appointment that has lapsed by inaction of the Commission on Appointments does not constitute a
term of office.”37 We consequently ruled:
However, an ad interim appointment that has lapsed by inaction of the Commission on Appointments
does not constitute a term of office. The period from the time the ad interim appointment is made to
the time it lapses is neither a fixed term nor an unexpired term. To hold otherwise would mean that the
President by his unilateral action could start and complete the running of a term of office in the
COMELEC without the consent of the Commission on Appointments. This interpretation renders inutile
the confirming power of the Commission on Appointments.38 (emphasis ours; italics supplied)
Based on these considerations, we conclude that the petitioners can never be considered to have
retired from the service not only because they did not complete the full term, but, more importantly,
because they did not serve a “term of office” as required by Section 1 of R.A. No. 1568, as amended.
_______________
distinguished from the tenure of the incumbent. The term means the time during which the officer may
claim to hold office as of right, and fixes the interval after which the several incumbents shall succeed
one another. The tenure represents the term during which the incumbent actually holds the office. The
term of office is not affected by the hold-over. The tenure may be shorter than the term for reasons
within or beyond the power of the incumbent. [emphases ours]
36 Supra note 23.
37 Id., at p. 598; emphasis ours.
38 Ibid.
834
834
Ortiz v. COMELEC cannot be
applied to the present case
We are not unmindful of the Court’s ruling in Ortiz v. COMELEC39 which Barcelona cites as basis for his
claim of retirement benefits despite the fact that―like the petitioners―he did not complete the full
term of his office.
In that case, the petitioner was appointed as Comelec Commissioner, for a term expiring on May 17,
1992, by then President Ferdinand E. Marcos, and took his oath of office on July 30, 1985. When
President Corazon Aquino assumed the Presidency and following the lead of the Justices of the Supreme
Court, Ortiz―together with the other Comelec Commissioners―tendered his courtesy resignation on
March 5, 1986. On July 21, 1986, President Aquino accepted their resignations effective immediately.
Thereafter, Ortiz applied for retirement benefits under R.A. No. 1568, which application the Comelec
denied. The Court, however, reversed the Comelec and held that “[t]he curtailment of [Ortiz’s] term not
being attributable to any voluntary act on the part of the petitioner, equity and justice demand that he
should be deemed to have completed his term xxx. [That he] should be placed in the same category as
that of an official holding a primarily confidential position whose tenure ends upon his superior’s loss of
confidence in him.” Thus, as “he is deemed to have completed his term of office, [Ortiz] should be
considered retired from the service.”40
A close reading of Ortiz reveals that it does not have the same fact situation as the present case and is
thus not decisive of the present controversy. We note that the impact of the principle of stare decisis
that Barcelona cited as basis is limited; specific judicial decisions are binding only on the parties to the
case and on future parties with similar
_______________
39 Supra note 19.
40 Id., at p. 788; p. 820.
835
835

or identical factual situations.41 Significantly, the factual situation in Ortiz is totally different so that its
ruling cannot simply be bodily lifted and applied arbitrarily to the present case.
First, in Ortiz, Ortiz’s appointment was a regular appointment made by then President Marcos, while the
petitioners were appointed by President Ramos ad interim or during the recess of Congress.
Second, Ortiz’s appointment was made under the 1973 Constitution which did not require the
concurrence of the CA. Notably, the 1973 Constitution abolished the CA and did not provide for an
executive limit on the appointing authority of the President. In the present case, the petitioners’ ad
interim appointment was made under the 1987 Constitution which mandated that an appointment shall
be effective only until disapproval by the CA or until the next adjournment of Congress.
Third, in Ortiz, the Court addressed the issue of whether a constitutional official, whose “courtesy
resignation” had been accepted by the President of the Philippines during the effectivity of the Freedom
Constitution, may be entitled to retirement benefits under R.A. No. 1568. In the present case, the issue
is whether the termination of the petitioners’ ad interim appointments entitles them to the full five-year
lump sum gratuity provided for by R.A. No. 1568.
No occasion for liberal construction
since Section 1 of R.A. No. 1568, as
amended, is clear and unambiguous
_______________
41 See Concurring Opinion of J. Brion in Philippine Savings Bank, et al. v. Senate Impeachment Court,
etc., G.R. No. 200238, February 9, 2012 citing Theodore O. Te, Stare In (Decisis): Reflections on Judicial
Flip-flopping in League of Cities v. Comelec and Navarro v. Ermita, 85 PHIL. L. J. 784, 787 (2011). See also
Negros Navigation Co., Inc. v. CA, 346 Phil. 551; 281 SCRA 534 (1997).
836
836
The petitioners’ appeal to liberal construction of Section 1 of R.A. No. 1568 is misplaced since the law is
clear and unambiguous. We emphasize that the primary modality of addressing the present case is to
look into the provisions of the retirement law itself. Guided by the rules of statutory construction in this
consideration, we find that the language of the retirement law is clear and unequivocal; no room for
construction or interpretation exists, only the application of the letter of the law.
The application of the clear letter of the retirement law in this case is supported by jurisprudence. As
early as 1981, in the case of In Re: Claim of CAR Judge Noel,42 the Court strictly adhered to the
provisions of R.A. No. 910 and did not allow the judge’s claim of monthly pension and annuity under the
aforementioned law, considering that his length of government service fell short of the minimum
requirements.
Similarly, in Re: Judge Alex Z. Reyes,43 the Court dismissed CTA Judge Reyes’ invocation of the doctrine
of liberal construction of retirement laws to justify his request that the last step increment of his salary
grade be used in the computation of his retirement pay and terminal leave benefits, and held:
In Borromeo, the court had occasion to say: “It is axiomatic that retirement laws are liberally construed
and administered in favor of the persons intended to be benefited. All doubts as to the intent of the law
should be resolved in favor of the retiree to achieve its humanitarian purposes.” Such interpretation in
favor of the retiree is unfortunately not called for nor warranted, where the clear intent of the
applicable law and rules are demonstrably against the petitioner’s claim. (Paredes v. City of Manila, G.R.
No. 88879, March 21, 1991). Section 4 is explicit and categorical in its prohibition and[,] unfortunately
for Judge Reyes[,] applies squarely to the instant case.44 (emphasis ours; italics supplied)
_______________
42 Adm. Matter No. 1155-CAR, 194 Phil. 9; 107 SCRA 9 (1981).
43 Adm. Matter No. 91-6-007-CTA, December 21, 1992, 216 SCRA 720.
44 Id., at p. 725.
837
837
Finally, in Gov’t Service Insurance System v. Civil Service Commission,45 the Court was asked to resolve
whether government service rendered on a per diem basis is creditable for computing the length of
service for retirement purposes. In disregarding the petitioners’ plea for liberal construction, the Court
held:
The law is very clear in its intent to exclude per diem in the definition of “compensation.” Originally, per
diem was not among those excluded in the definition of compensation (See Section 1(c) of C.A. No. 186),
not until the passage of the amending laws which redefined it to exclude per diem.
The law not only defines the word “compensation,” but it also distinguishes it from other forms of
remunerations. Such distinction is significant not only for purposes of computing the contribution of the
employers and employees to the GSIS but also for computing the employees’ service record and
benefits.
xxxx
Private respondents both claim that retirement laws must be liberally interpreted in favor of the
retirees. However, the doctrine of liberal construction cannot be applied in the instant petitions, where
the law invoked is clear, unequivocal and leaves no room for interpretation or construction. Moreover,
to accommodate private respondents’ plea will contravene the purpose for which the law was enacted,
and will defeat the ends which it sought to attain (cf. Re: Judge Alex Z. Reyes, 216 SCRA 720 [1992]).46
[italics supplied; emphasis ours]
No compelling reasons exist to
warrant the liberal application
of Section 1 of R.A. No. 1568, as
amended, to the present case
We find no compelling legal or factual reasons for the application of the Court’s liberality in the
interpretation of re-
_______________
45 G.R. Nos. 98395 and 102449, October 28, 1994, 237 SCRA 809.
46 Id., at pp. 816- 818.
838
838

tirement laws to the present case. The discretionary power of the Court to exercise the liberal
application of retirement laws is not limitless; its exercise of liberality is on a case-to-case basis and only
after a consideration of the factual circumstances that justify the grant of an exception. The recent case
of Re: Application for Retirement of Judge Moslemen T. Macarambon under Republic Act No. 910, as
amended by Republic Act No. 994647 fully explained how a liberal approach in the application of
retirement laws should be construed, viz.:
The rule is that retirement laws are construed liberally in favor of the retiring employee. However, when
in the interest of liberal construction the Court allows seeming exceptions to fixed rules for certain
retired Judges or Justices, there are ample reasons behind each grant of an exception. The crediting of
accumulated leaves to make up for lack of required age or length of service is not done indiscriminately.
It is always on a case to case basis.
In some instances, the lacking element―such as the time to reach an age limit or comply with length of
service is de minimis. It could be that the amount of accumulated leave credits is tremendous in
comparison to the lacking period of time.
More important, there must be present an essential factor before an application under the Plana or
Britanico rulings may be granted. The Court allows a making up or compensating for lack of required age
or service only if satisfied that the career of the retiree was marked by competence, integrity, and
dedication to the public service; it was only a bowing to policy considerations and an acceptance of the
realities of political will which brought him or her to premature retirement. (emphases and italics ours;
citation omitted)
In the present case, as previously mentioned, Ortiz cannot be used as authority to justify a liberal
application of Section 1 of R.A. No. 1568, as amended not only because it is not on all fours with the
present case; more importantly, the Court
_______________
47 Supra note 32 citing Re: Gregorio G. Pineda, A.M. No. 6789, July 13, 1990, 187 SCRA 469, 475.
839
839
in Ortiz had ample reasons, based on the unique factual circumstances of the case, to grant an exception
to the service requirements of the law. In Ortiz, the Court took note of the involuntariness of Ortiz’s
“courtesy resignation,” as well as the peculiar circumstances obtaining at that time President Aquino
issued Proclamation No. 1 calling for the courtesy resignation of all appointive officials, viz.:
From the foregoing it is evident that petitioner’s “resignation” lacks the element of clear intention to
surrender his position. We cannot presume such intention from his statement in his letter of March 5,
1986 that he was placing his position at the disposal of the President. He did not categorically state
therein that he was unconditionally giving up his position. It should be remembered that said letter was
actually a response to Proclamation No. 1 which President Aquino issued on February 25, 1986 when
she called on all appointive public officials to tender their “courtesy resignation” as a “first step to
restore confidence in public administration.”48
In stark contrast, no such peculiar circumstances obtain in the present case.
Finally, in the absence of any basis for liberal interpretation, the Court would be engaged in judicial
legislation if we grant the petitioners’ plea. We cannot overemphasize that the policy of liberal
construction cannot and should not be to the point of engaging in judicial legislation―an act that the
Constitution absolutely forbids this Court to do. In the oft-cited case of Tañada v. Yulo,49 Justice George
A. Malcolm cautioned against judicial legislation and warned against liberal construction being used as a
license to legislate and not to simply interpret,50 thus:
_______________
48 Ortiz v. COMELEC, supra note 19 at pp. 787-788; pp. 819-820.
49 61 Phil. 515 (1935).
50 See Theodore O. Te, Stare In (Decisis): Reflections on Judicial Flip-flopping in League of Cities v.
Comelec and Navarro v. Ermita, 85 PHIL. L. J. 784, 787 (2011).
840
840
Counsel in effect urges us to adopt a liberal construction of the statute. That in this instance, as in the
past, we aim to do. But counsel in his memorandum concedes “that the language of the proviso in
question is somewhat defective and does not clearly convey the legislative intent”, and at the hearing in
response to questions was finally forced to admit that what the Government desired was for the court
to insert words and phrases in the law in order to supply an intention for the legislature. That we cannot
do. By liberal construction of statutes, courts from the language used, the subject matter, and the
purposes of those framing them are able to find out their true meaning. There is a sharp distinction,
however, between construction of this nature and the act of a court in engrafting upon a law something
that has been omitted which someone believes ought to have been embraced. The former is liberal
construction and is a legitimate exercise of judicial power. The latter is judicial legislation forbidden by
the tripartite division of powers among the three departments of government, the executive, the
legislative, and the judicial.51
In the present case, Section 1 of R.A. No. 1568, by its plain terms, is clear that retirement entails the
completion of the term of office. To construe the term “retirement” in Section 1 of R.A. No. 1568 to
include termination of an ad interim appointment is to read into the clear words of the law exemptions
that its literal wording does not support; to depart from the meaning expressed by the words of R.A. No.
1568 is to alter the law and to legislate, and not to interpret. We would thereby violate the time-
honored rule on the constitutional separation of powers. The words of Justice E. Finley Johnson in the
early case of Nicolas v. Alberto52 still ring true today, viz.:
The courts have no legislative powers. In the interpretation and construction of statutes their sole
function is to determine, and, within the constitutional limits of the legislative power, to give effect to
the intention of the legislature. The courts cannot read into a
_______________
51 Tañada v. Yulo, supra note 49, at p. 519.
52 See Dissenting Opinion in Nicolas v. Alberto, 51 Phil. 370, 382 (1928).
841
841
statute something which is not within the manifest intention of the legislature as gathered from the
statute itself. To depart from the meaning expressed by the words of a statute, is to alter the statute, to
legislate and not to interpret. The responsibility for the justice or wisdom of legislation rests with the
legislature, and it is the province of the courts to construe, not to make the laws.
To reiterate, in light of the express and clear terms of the law, the basic rule of statutory construction
should therefore apply: “legislative intent is to be determined from the language employed, and where
there is no ambiguity in the words, there is no room for construction.”53
The Comelec did not violate the rule
on finality of judgments
Petitioners argue that Resolution No. 06-1369, which initially granted them a five-year lump sum
gratuity, attained finality thirty (30) days after its promulgation, pursuant to Section 13, Rule 18 of the
Comelec Rules of Procedure, and, thus, can no longer be modified by the Comelec.
We cannot agree with this position. Section 13, Rule 18 of the Comelec Rules of Procedure reads:
Sec. 13. Finality of Decisions or Resolutions.―
a. In ordinary actions, special proceedings, provisional remedies and special reliefs a decision or
resolution of the Commission en banc shall become final and executory after thirty (30) days from its
promulgation.
_______________
53 See Concurring Opinion of J. Brion in Philippine Savings Bank, et al. v. Senate Impeachment Court,
etc., G.R. No. 200238, February 9, 2012, citing Veroy v. Layague, et al., G.R. No. L-95630, June 18, 1992,
210 SCRA 97 and Provincial Board of Cebu v. Presiding Judge of Cebu, CFI, Br. IV, G.R. No. 34695, March
7, 1989, 171 SCRA 1.
842
842
A simple reading of this provision shows that it only applies to ordinary actions, special proceedings,
provisional remedies and special reliefs. Under Section 5, Rule 1 of the Comelec Rules of Procedures,
ordinary actions refer to election protests, quo warranto, and appeals from decisions of courts in
election protest cases; special proceedings refer to annulment of permanent list of voters, registration
of political parties and accreditation of citizens’ arms of the Commission; provisional remedies refer to
injunction and/or restraining order; and special reliefs refer to certiorari, prohibition, mandamus and
contempt. Thus, it is clear that the proceedings that precipitated the issuance of Resolution No. 06-1369
do not fall within the coverage of the actions and proceedings under Section 13, Rule 18 of the Comelec
Rules of Procedure. Thus, the Comelec did not violate its own rule on finality of judgments.
No denial of due process
We also find no merit in the petitioners’ contention that that they were denied due process of law when
the Comelec issued Resolution No. 8808 without affording them the benefit of a notice and hearing. We
have held in the past that “[t]he essence of due process is simply the opportunity to be heard, or as
applied to administrative proceedings, an opportunity to explain one’s side or an opportunity to seek a
reconsideration of the action or ruling complained of. [Thus, a] formal or trial-type hearing is not at all
times and in all instances essential. The requirements are satisfied where the parties are given fair and
reasonable opportunity to explain their side of the controversy at hand. What is frowned upon is
absolute lack of notice and hearing.”54 In Bautista v. Commission on Elections,55 we emphasized:
_______________
54 Bautista v. COMELEC, 460 Phil. 459, 478; 414 SCRA 299, 313 (2003).
55 359 Phil. 1; 298 SCRA 480 (1998).
843
843
In Zaldivar vs. Sandiganbayan (166 SCRA 316 [1988]), we held that the right to be heard does not only
refer to the right to present verbal arguments in court. A party may also be heard through his pleadings.
Where opportunity to be heard is accorded either through oral arguments or pleadings, there is no
denial of procedural due process. As reiterated in National Semiconductor (HK) Distribution, Ltd. vs.
NLRC (G.R. No. 123520, June 26, 1998), the essence of due process is simply an opportunity to be heard,
or as applied to administrative proceedings, an opportunity to explain one’s side. Hence, in Navarro III
vs. Damaso (246 SCRA 260 [1995]), we held that a formal or trial-type hearing is not at all times and not
in all instances essential.56 (italics supplied)
Thus, “[a] party cannot successfully invoke deprivation of due process if he was accorded the
opportunity of a hearing, through either oral arguments or pleadings. There is no denial of due process
when a party is given an opportunity through his pleadings.”57 In the present case, the petitioners
cannot claim deprivation of due process because they actively participated in the Comelec proceedings
that sought for payment of their retirement benefits under R.A. No. 1568. The records clearly show that
the issuance of the assailed Comelec resolution was precipitated by the petitioners’ application for
retirement benefits with the Comelec. Significantly, the petitioners were given ample opportunity to
present and explain their respective positions when they sought a re-computation of the initial pro-
rated retirement benefits that were granted to them by the Comelec. Under these facts, no violation of
the right to due process of law took place.
No vested rights over retirement benefits

As a last point, we agree with the Solicitor General that the retirement benefits granted to the
petitioners under Section 1 of R.A. No. 1568 are purely gratuitous in nature; thus, they
_______________
56 Id., at pp. 9-10; p. 486.
57 Alauya, Jr. v. Commission on Elections, 443 Phil. 893, 902; 395 SCRA 742, 748 (2003); citations
omitted.
844
844
have no vested right over these benefits.58 Retirement benefits as provided under R.A. No. 1568 must
be distinguished from a pension which is a form of deferred compensation for services performed; in a
pension, employee participation is mandatory, thus, employees acquire contractual or vested rights over
the pension as part of their compensation.59 In the absence of any vested right to the R.A. No. 1568
retirement benefits, the petitioners’ due process argument must perforce fail.
WHEREFORE, premises considered, we hereby DISMISS the petition for certiorari filed by petitioners
Evalyn I. Fetalino and Amado M. Calderon for lack of merit. We likewise DENY Manuel A. Barcelona, Jr.’s
petition for intervention for lack of merit. No costs.
SO ORDERED.
Carpio** (Acting C.J.), Leonardo-De Castro, Peralta, Del Castillo, Abad, Villarama, Jr., Perez, Mendoza,
Perlas-Bernabe and Leonen, JJ., concur.
Sereno, (C.J.), On Leave.
Velasco, Jr., J., No part due to relationship to party.
Bersamin, J., I join the dissent of J. Reyes.
Reyes, J., With my dissenting position.
DISSENTING OPINION
REYES, J.:
At issue in this case is whether the petitioners are entitled to the full five-year lump sum gratuity
provided by Republic
_______________
58 Parreño v. Commission on Audit, G.R. No. 162224, June 7, 2007, 523 SCRA 390, 400.
59 Ibid.
** In lieu of Chief Justice Maria Lourdes P. A. Sereno per Special Order No. 1384 dated December 4,
2012.
845
845
Act (R.A.) No. 1568, as amended,1 entitled “An Act to Provide Life Pension to the Auditor General and
the Chairman or any Member of the Commission on Elections.”2
In deference to the majority, it is my opinion that the petitioners are entitled to a pro-rated
computation of the gratuity for reasons hereinafter discussed.
R.A. No. 1568, as amended, provides for the retirement benefits due to a COMELEC or Chairperson
Member. One is the gratuity or five-year lump sum and the other is the annuity or lifetime monthly
pension. The bone of contention in this case pertains solely to the gratuity or five-year lump sum.
Originally, Section 1 of R.A. No. 1568 provides:
Sec. 1. When the Auditor General, or the Chairman or any Member of the Commission on Elections
retires from the service for having completed his term of office or by reason of his incapacity to
discharge the duties of his office, or dies while in the service, or resigns upon reaching the age of sixty
years, he or his heirs shall be paid in lump sum his salary for five years: Provided, That at the time of said
retirement, death or resignation, he has rendered not less than twenty years of service in the
government.
R.A. No. 1568 was subsequently amended by R.A. Nos. 34733 and 3595,4 until R.A. No. 4968,5 which
declared inopera-
_______________
1 R.A. No. 1568 was amended by R.A. Nos. 3473 and 3595.
2 Approved on June 16, 1956 and re-enacted by R.A. No. 6118, entitled “An Act to Restore the Pension
System for the Auditor General and the Chairman and Members of the Commission on Elections, as
provided in Republic Act Numbered One Thousand Five Hundred Sixty-Eight, as amended.”
3 Approved on June 16, 1962. The title of the law was amended to read as “(A)n Act to provide under
certain conditions life pension to the Auditor General and the Chairman and members of the
Commission on Elections,” while the proviso “(A)nd, provided, further, That he shall receive an annuity
payable monthly during the residue of his natural life equivalent to the amount of the monthly salary he
was receiving on the date of retirement, incapacity or resignation,” was added to Section 1.
846
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tive or abolished R.A. No. 1568, as amended. R.A. No. 1568, as amended by R.A. Nos. 3473 and 3595
was finally resurrected by R.A. No. 61186 by re-enacting it.
Thus, as it now stands, Section 1 provides:

Sec. 1. When the Auditor General or the Chairman or any Member of the Commission on Elections
retires from the service for having completed his term or office or by reason of his incapacity to
discharge the duties of his office, or dies while in the service, or resigns at any time after reaching the
age of sixty years but before the expiration of this term of office, he or his heirs shall be paid in lump
sum his salary for one year, not exceeding five years, for every year of service based upon the last
annual salary that he was receiving at the time of retirement, incapacity, death or resignation, as the
case may be: Provided, That in case of resignation, he has rendered not less than twenty years of service
in the government; And, provided, further, That he shall receive an annuity payable monthly during the
residue of his natural life equivalent to the amount of monthly salary he was receiving on the date of
retirement, incapacity or resignation. (Emphasis and underscoring ours)
There are only four (4) categories under which a COMELEC Chairperson or Commissioner may avail of
the five-year lump sum gratuity, viz.:
(1) Retirement from the service for having completed the term of office;
_______________
4 Approved on June 22, 1963, entitled “An Act to Amend Republic Act Numbered Fifteen Hundred Sixty-
Eight.”
5 Approved on June 17, 1967, entitled, “An Act Amending further Commonwealth Act Numbered One
Hundred Eighty-Six, as amended.”
6 Section 1 thereof states: “Republic Act Numbered One thousand five hundred sixty-eight, as amended
by Republic Act Numbered Three thousand four hundred seventy-three and Republic Act Numbered
Three thousand five hundred ninety-five providing for the pension system for the Auditor General and
the Chairman and Members of the Commission on Elections, is hereby re-enacted.”
847
847
(2) Incapacity to discharge the duties of office;
(3) Death while in the service; and
(4) Resignation after reaching the age of sixty (60) years but before the expiration of the term of office.
In addition, the officer should have rendered not less than twenty years of service in the government at
the time of retirement.
The termination of the petitioners’ ad interim appointments cannot qualify as either incapacity or
resignation.
Incapacity in this case means the inability of a public officer to perform the functions and duties
concomitant to the office due to impairment. The termination of the petitioners’ ad interim
appointment was obviously not a result of any disability such that the petitioners cannot perform the
duties of a Commissioner. The limitation on their capacity to perform the duties of their office was due
to the simple reason that they have no office or responsibility to speak of since their ad interim
appointments were not acted upon by the CA and were bypassed with the adjournment of Congress.
Neither can the termination of their ad interim appointments be deemed as resignation. Resignation is
defined as the act of giving up or the act of an officer by which he declines his office and renounces the
further right to use it. To constitute a complete and operative act of resignation, the officer or employee
must show a clear intention to relinquish or surrender his position accompanied by the act of
relinquishment.7 In this case, there was no intentional relinquishment by the petitioners’ of their posts
as the termination was a result of the adjournment of Congress without the CA acting on their
appointments.
The COMELEC was correct in ruling that the only pertinent provision under which the petitioners’ case
may fall is retirement from service.8 Retirement, however, entails com-
_______________
7 Ortiz v. Commission on Elections, 245 Phil. 780, 787; 162 SCRA 812, 819 (1988).
8 Rollo, p. 48.
848
848
pliance with certain age and service requirements specified by law and jurisprudence and takes effect by
operation of law.9
R.A. No. 1568, as amended, is clear. Section 1 thereof states that “[W]hen x x x any Member of the
Commission on Elections retires from the service for having completed his term of office x x x he or his
heirs shall be paid in lump sum his salary for five years x x x.” It is obvious from the plain language of the
provision that retirement under said category presupposes completion of the term of office.
Term means the time during which the officer may claim to hold office as a matter of right, and fixes the
interval after which the several incumbents shall succeed one another.10 Particularly, term of office has
been defined as the period when an elected officer or appointee is entitled to perform the functions of
the office and enjoy its privileges and emoluments.11
Article IX-D, Section 2 of the 1987 Constitution provides for a seven (7) year term, without
reappointment, for the COMELEC Chairperson and Commissioners. In this case, petitioners Fetalino and
Calderon served as COMELEC Commissioners only from February 16, 1998 to June 30, 1998. Petitioner-
intervenor Barcelona, on the other hand, served only from February 12, 2004 to July 10, 2005. Strictly
construed, the petitioners, therefore, did not complete the full term of their office.
I believe, however, that all is not lost for the petitioners. In Ortiz v. COMELEC,12 the Court affirmed the
grant of retire-
_______________
9 Re: Application for Retirement of Judge Moslemen T. Macarambon under Republic Act No. 910, as
amended by Republic Act No. 9946, A.M. No. 14061-Ret, June 19, 2012, 673 SCRA 602.
10 Gaminde v. Commission on Audit, 401 Phil. 77, 88; 347 SCRA 655, 663 (2000).
11 Casibang v. Judge Aquino, 181 Phil. 181, 190; 92 SCRA 642, 652 (1979).
12 Supra note 7.
849

849
ment benefits in favor of then COMELEC Commissioner Mario D. Ortiz (Ortiz) despite the fact that he did
not complete the full term of his office. Ortiz was initially appointed as COMELEC Commissioner by then
President Ferdinand E. Marcos and took his oath of office on July 30, 1985. Immediately after the
assumption of President Corazon C. Aquino (Pres. Aquino), Ortiz, together with other COMELEC
Commissioners, tendered their courtesy resignations on March 5, 1986, which were accepted by Pres.
Aquino. Subsequently, Ortiz filed his application for retirement benefits, which was denied by the
COMELEC. Taking into consideration principles of equity and justice, the Court reversed the COMELEC’s
denial of Ortiz’s application and directed the appropriate government agency to facilitate the processing
and payment of his retirement benefits. The Court stated:
The curtailment of his term not being attributable to any voluntary act on the part of the petitioner,
equity and justice demand that he should be deemed to have completed his term albeit much ahead of
the date stated in his appointment paper. Petitioner’s case should be placed in the same category as
that of an official holding a primarily confidential position whose tenure ends upon his superior’s loss of
confidence in him. His cessation from the service entails no removal but an expiration of his term.
As he is deemed to have completed his term of office, petitioner should be considered retired from the
service. x x x.13 (Citation omitted and emphasis ours)
While the circumstances of Ortiz are not exactly identical with that of the petitioners’, this should not be
a bar to the Court’s application of the Ortiz ruling in this case. It should be noted that at the time of
Ortiz’s appointment in 1985 and courtesy resignation in 1986, there was no CA to speak of as
_______________
13 Id., at pp. 788-789; p. 820.

850
850
it was abolished by the 1973 Constitution.14 Nevertheless, the severance of the petitioners’
appointment may be likened to that of Commissioner Ortiz’s in that it is not “attributable to any
voluntary act” on their part and their positions may be “placed in the same category as that of an official
holding a primarily confidential position whose tenure ends upon his superior’s loss of confidence in
him.”15
Moreover, a liberal construction of R.A. No. 1568, as amended, would achieve the humanitarian
purposes of the law so that efficiency, security and well-being of government employees may be
enhanced. After all, retirement laws are designed to provide for the retiree’s sustenance and, hopefully,
even comfort, when he no longer has the capability to earn a livelihood.16 Thus, the non-renewal of the
petitioners’ ad interim appointments should be tantamount to expiration of their respective terms and
in line with the same dictates of justice and equity espoused in Ortiz, the petitioners, therefore, are
deemed to have completed their terms of office and considered as retired from the service.
Parenthetically, to a public servant, pension is not a gratuity but rather a form of deferred compensation
for services performed and his right thereto commences to vest upon his entry into the retirement
system and becomes an enforceable obligation in court upon fulfillment of all conditions under which it
is to be paid. Similarly, retirement benefits receivable by public employees are valuable parts of the
consideration for entrance into and continuation in public employment. They serve a public purpose and
a primary objective in establishing them is to induce able persons to enter and remain in public
employment, and to render faithful and efficient service while so employed.17
_______________
14 http://comappt.gov.ph/index.php?id1=2&id2=1&id3=0, viewed on October 25, 2012.
15 Supra note 7.
16 Government Service Insurance System v. De Leon, G.R. No. 186560, November 17, 2010, 635 SCRA
321, 330.
17 Supra note 7.
851
851
The petitioners, however, are not entitled to the full five-year lump sum gratuity provided by R.A. No.
1568, as amended. Section 1 contains the proviso: “he or his heirs shall be paid in lump sum his salary
for one year, not exceeding five years, for every year of service based upon the last annual salary that he
was receiving at the time of retirement.” Said condition provides for the manner of computing the
retirement benefits due to a COMELEC Chairperson or Commissioner. Consequently, a maximum of five-
year lump gratuity is given to a Chairperson or Commissioner who retired and has served for at least five
(5) years. If the years of service are less than five (5), then a retiree is entitled to a gratuity for every year
of service. The same proviso also contemplates the situation when a Chairperson or Commissioner does
not complete the full term of the office. This will occur, for example, when a Chairperson or
Commissioner takes over in a case of vacancy resulting from certain causes―death, resignation,
disability or impeachment―such that the appointee will serve only for the unexpired portion of the
term of the predecessor.18 In such case, the retiree is entitled to gratuity depending on the years of
service but not to exceed five (5) years. Given that the petitioners did not serve the full length of their
term of office, the computation of their lump sum gratuity should be based on the foregoing proviso.
Moreover, I do not agree with the petitioners that they were deprived of due process when the
COMELEC issued the assailed resolution without affording them the right to be notified of its issuance
and be heard on the matter. Neither did they acquire a vested right over their retirement benefits.
In issuing the assailed Resolution No. 8808, the COMELEC was performing a purely administrative
function. Administrative power is concerned with the work of applying policies and enforcing orders as
determined by proper governmental or-
_______________
18 See Funa v. The Chairman, Commission on Audit, Reynaldo A. Villar, G.R. No. 192791, April 24, 2012,
670 SCRA 579.
852
852
gans.19 In Bautista v. COMELEC,20 the Court stated that the term administrative connotes, or pertains,
to administration, especially management, as by managing or conducting, directing or superintending,
the execution, application, or conduct of persons or things.21 It does not entail an opportunity to be
heard, the production and weighing of evidence, and a decision or resolution thereon.22 In denying the
petitioners’ application for retirement benefits, the COMELEC was merely applying and implementing
the provisions of R.A. No. 1568, as amended, vis-à-vis the petitioners’ prevailing circumstances. It was
not exercising any quasi-judicial or administrative adjudicatory power such that the due process
requirements of notice and hearing must be observed.23
Records also show that the issuance of the assailed resolution originated from the petitioners’ own
move to have their retirement benefits paid.24 Petitioners, in fact, were also able to present their
respective positions on the matter when they sought a re-computation of the initial retirement benefits
that were granted by the COMELEC on a pro rata basis.25
It should be stressed that the retirement benefits granted to COMELEC Chairpersons and Commissioners
under R.A. No. 1568, as amended, are purely gratuitous in nature. The petitioners cannot claim any
vested right over the same as these are not similar to a pension plan where employee contribution or
participation is mandatory, thus vesting in the
_______________
19 Cipriano v. Commission on Elections, 479 Phil. 677, 690; 436 SCRA 45, 56 (2004).
20 460 Phil. 459; 414 SCRA 299 (2003).
21 Id., at pp. 475-476; p. 310, citing the concurring opinion of Justice Antonio in University of Nueva
Caceres v. Hon. Martinez, 155 Phil. 126, 132-133; 56 SCRA 148, 154-155 (1974).
22 Id.
23 Namil v. Commission on Elections, 460 Phil. 751, 759; 414 SCRA 553, 559 (2003).
24 Rollo, pp. 52-67.
25 Id., at p. 93.
853
853
employee a right over said pension. The rule is that where the pension is part of the terms of
employment and employee participation is mandatory, employees have contractual or vested rights in
the pension.26
WHEREFORE, I vote that the petition filed by Evelyn I. Fetalino and Amado M. Calderon should be
GRANTED while the petition filed by Manuel A. Barcelona should be DENIED inasmuch as he admitted
that he already received his pro-rated gratuity.27
Petition for certiorari dismissed, petition for intervention denied.
Notes.―Only employees who are in the government service upon the effectivity of Presidential Decree
1146 who shall have, at the time of retirement, the option to retire under the old law or CA 186
(otherwise known as the Government Service Insurance Act, or the GSIS Charter) are exempt from the
coverage of PD 1146. (Santos vs. Committee on Claims Settlement, 583 SCRA 152 [2009])
All service credited for retirement, resignation or separation for which corresponding benefits have
been awarded shall be excluded in the computation of service in case of re-employment. (Santos vs.
Committee on Claims Settlement, 583 SCRA 152 [2009])
――o0o――
_______________
26 GSIS, Cebu City Branch v. Montesclaros, 478 Phil. 573, 584; 434 SCRA 441, 448 (2004); see also
Parreño v. Commission on Audit, G.R. No. 162224, June 7, 2007, 523 SCRA 390, 400.
27 Rollo, p. 236; Petition-In-Intervention, p. 5. Fetalino vs. Commission on Elections, 686 SCRA 813, G.R.
No. 191890 December 4, 2012

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G.R. No. 191890. December 4, 2012.

EVALYN I. FETALINO and AMADO M. CALDERON, petitioners,

MANUEL A. BARCELONA, JR., petitioner-intervenor, vs. COMMISSION ON ELECTIONS, respondent.

SUPREME COURT REPORTS ANNOTATED

Fetalino vs. Commission on Elections

VOL. 686, DECEMBER 4, 2012

Fetalino vs. Commission on Elections

SUPREME COURT REPORTS ANNOTATED

Fetalino vs. Commission on Elections

VOL. 686, DECEMBER 4, 2012

Fetalino vs. Commission on Elections

SUPREME COURT REPORTS ANNOTATED

Fetalino vs. Commission on Elections

Reyes, J., Dissenting Opinion:

VOL. 686, DECEMBER 4, 2012

Fetalino vs. Commission on Elections

SUPREME COURT REPORTS ANNOTATED

Fetalino vs. Commission on Elections

in a case of vacancy resulting from certain causes―death, resignation, disability or impeachment―such

VOL. 686, DECEMBER 4, 2012

Fetalino vs. Commission on Elections

The facts are stated in the opinion of the Court.

Froilan M. Bacungan & Associates for petitioners.

Quasha, Ancheta, Peña, Nolasco for petitioner-intervenor.

1 Rollo, pp. 3-42.

2 Id., at pp. 46-51.

4 Vice Remedios A. Salazar-Fernando, now a member of the Court of Appeals.

5 Vice Regalado E. Maambong (deceased), retired member of the Court of Appeals.

SUPREME COURT REPORTS ANNOTATED

Fetalino vs. Commission on Elections

The Antecedent Facts

6 The provision states:

7 Rollo, pp. 6-7.

9 Id., at pp. 52-67.

10 Id., at pp. 88-89.

VOL. 686, DECEMBER 4, 2012

14 Id., at pp. 94-97.

15 Id., at pp. 98-99.

SUPREME COURT REPORTS ANNOTATED

Fetalino vs. Commission on Elections

On this basis, the Comelec ruled on the matter, as follows:

Name Position Date of Service

1. Alfredo Benipayo, Jr. Chairman Feb. 16, 2001 to June 5, 2002

2. Evalyn Fetalino Commissioner Feb. 16, 1998 to June 30, 1998

17 Id., at pp. 48-49.

SUPREME COURT REPORTS ANNOTATED

Fetalino vs. Commission on Elections

4. Virgilio Garciliano Commissioner Feb. 12, 2004 to June 10, 2005

6. Moslemen Macarambon Commissioner Nov[.] 05, 2007 to Oct. 10, 2008

7. Leonardo Leonida Commissioner July 03, 2008 to June 26, 2009

18 Id., at pp. 50-51.

SUPREME COURT REPORTS ANNOTATED

Fetalino vs. Commission on Elections

The Case for the Respondents

19 Id., at pp. 12-38.

20 245 Phil. 780, 788; 162 SCRA 812, 820 (1988).

22 Id., at pp. 107-122.

VOL. 686, DECEMBER 4, 2012

Fetalino vs. Commission on Elections

The Court’s Ruling

We DISMISS the petition and DENY Barcelona’s petition for intervention.

23 Id., at pp. 113-116.

24 429 Phil. 554; 380 SCRA 49 (2002).